TVTM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned the mandatory cancellation of the Applicant's visa due to his substantial criminal record and failure to pass the character test. The Applicant, a New Zealand national, had resided in Australia since the age of 15 and had an extensive history of offending, commencing at age 17 and continuing until his incarceration in 2019. The core dispute before the Tribunal was whether the discretion to revoke the mandatory cancellation of his visa should be exercised, considering various primary and other considerations.

The legal issues before the Tribunal were to determine whether the Applicant presented a risk to the Australian community, and to assess the best interests of any minor children affected by the decision. The Tribunal was required to weigh the protection of the Australian community from criminal or serious conduct against the best interests of the Applicant's children, and to consider the expectations of the Australian community.

In its reasoning, the Tribunal acknowledged the principle that the government is committed to protecting the Australian community from harm by non-citizens, and that remaining in Australia is a privilege. It considered the nature and seriousness of the Applicant's conduct, noting multiple convictions for violent crimes, including aggravated burglary and affray, and a conviction for assault against his partner. The Tribunal found that the Applicant represented a moderate risk of serious harm to the Australian community, a factor that weighed heavily against revoking the visa cancellation. However, the Tribunal also considered the best interests of the Applicant's ten children and sixteen nieces and nephews. Evidence was presented, including statements from some of his elder children, expressing their desire to be reunited with him and attesting to his role in their lives. The Tribunal accepted that it was in the children's best interests to have their father fulfill his role, noting that electronic contact was a poor substitute for his physical presence.

Ultimately, the Tribunal set aside the decision to cancel the Applicant's visa and revoked the cancellation.